Is anybody old enough here to remember the movie, the Seven-Per-cent Solution? Sherlock Holmes in addiction, still managing to crack the case while seeking treatment for his ailment. A classic that if you saw it in theatres in 1976, you would likely remember going. It was that memorable.
Well, in the NHL perhaps we could make another movie, “The 4.3 per sans Solution”.
To that end…..
What can be said of a league and it’s owners that skirt the issues?
There must be a lot to remember as commissioner of the NHL. After all, what is written is only an often mistaken guideline constantly needing correction, clarification, and interpretation.
Let me make something perfectly clear from the outset. Commissioner Bettman is a lawyer by training and education. Let’s remember this as we discuss his deposition. And, let’s remember this when we think of how lawyers will be the first to tell you to ‘get it in writing’.
Oh, how convenient to leave in the Veto rule of 4.3.
Oh, how coincidental we get a letter from MLSE (Toronto Maple Leafs) counsel to the NHL in 2006 stating that it is their interpretation that the vote on relocation must be approved by all teams. In other words, the Leafs would have to approve a move of a team to ‘their territory’ for it to fly. Or, it’s Veto time!
Oh, how the commisioner says everything is fine, because the league will not enforce the 4.3 veto rule.
So, we are supposed to say that’s fine? It’s OK to not formally correct 4.3?
How hard would it be, to remove the ‘unenforceable’ rule? Would it mean a new draft and some fresh pieces of paper being sent to the owners, so it is clearly ammended? Can’t have that, can we? That would be too hard?
When Gary Bettman was asked in the deposition if the league had ever received legal counsel of any kind, at any time on article 4.2 (relocation), Mr. Bettman quickly said it was not needed. Because, according to Gary Bettman:
“….I have on repeated occasions advised the Board that there’s an aspect of article 4 of the constitution which is unenforceable and will not be applied.”
There is one thing that is getting very clear, very fast, and that is the commissioner has great authority to ‘interpret’ the constitution, and instead of concrete legal clarity, there are aspects of it that need constant reminder that they will be enforceable or not.
Why in the world would we need such an outdated constitution?
Gary Bettman doesn’t strike me as the kind of man that would like loose ends. That is, unless the party at the other end is complaining.
How would we get around the 4.3 issue? Hmmm, let’s see. How about this?
We keep the wording in the constitution and the Leafs send a letter saying ‘their interpretation’ is not in agreement with the actual wording. The league files the letter. There, done!
So, what in effect has this done?
Well, for a time like this for one.
If article 4.3 was officially corrected, then MLSE and the Leafs would have no recourse to try to stop the so called unenforceable clause. It wouldn’t be there.
But, since technically it is there, then MLSE can take legal action against any party that might try to violate the article.
That would include the league they are part of.
And, we are saying Jim Balsillie is of poor character? He wants ‘in’, not to destroy it.
Gary Bettman, in deposition was asked this from the Balsillie Counsel:
“Take a look at page 2 of this document, there’s a reference, and I’ll ask if this is correct or not. It says Mr. Balsillie in the second paragraph under team vetoes, confirmed to Leopold that you had told him there was no team vetoes and I guess-“
Balsillie’s counsel was cut off by Gary Bettman.
“We should’ve done this earlier today. It could have saved us a lot of questions.”
Why do I include this seemingly unimportant answer?
Well, the bigger question is why was the Balsillie counsel cut off, and Mr. Bettman added the ‘we should have done this earlier today comment’?
Could it be this information surprised Gary Bettman, and he was ill prepared to answer? Something ‘out of line’?
Well, Bettman when asked if he had told that to Mr. Balsillie prior to February 27, 2009, answered:
“I don’t have a specific recollection of the conversation, but if it came up, I’m sure that’s what I told him. It was a majority vote.”
Because a majority vote seems to be the standard answer when the constitution seems to lack an update. How again can an organization with Board members liable for the constitution be expected to have such an outdated legal document? Why would they stand for it? It could only add confusion. Hardly professional.
It gets better.
When the counsel went on, it would have been interesting to be a fly on the wall of that office:
Q: “It then says Mr. Leopold at the end seemed very surprised by Balsillie’s conversation with Bettman on the issue and said he had always been under the impression that there was a home territory veto. And I’m asking you, have you ever heard Mr. Leopold express the view that he thought there was a home territory veto?”
Ah, to be that fly. As the counsel was asking to direct attention to exhibit 12, Gary Bettman added:
“This document is fascinating though.”
Q: “You can study it at a later time.”
Bettman: “I’m liking my personal agenda. I’m distressed to learn I don’t have many friends.”
Don’t have many friends? Where did that come from?
Let’s think for a moment.
We have Craig Leipold (nice name by the way) telling Jim Balsillie that he thought there were veto rights. Balsillie is telling him, no way, as Bettman informed him there were not veto rights. Leipold is confused. And why not? If he looks at the official constitution there they are – article 4.3 and the veto rights.
But more importantly, why would a Board of Governors member be confused on this important aspect? After all, Leipold is responsible for the league as a Board member.
Gary Bettman who seems to have a lot of pull is an employee, who answers to Leipold.
Who’s running the show?
Does Gary Bettman think he does not have a friend in Leipold because he (Leipold) is under the impression there are veto rights? That’s a stretch.
Could it be that Leipold is just being honest but Bettman looks upon his comment like he was some sort of traitor? No longer a friend? Give me a break. But, what else could explain this?
Well, according to Bettman upon a little more reflection on the matter at hand, he had this to add:
“By the way, this obviously is a piece of fiction.”
I can’t imagine a better time to end it for now.
A piece of fiction?
It doesn’t fit the plan? It doesn’t keep all the ducks in the row they are supposed to be lined up in? It doesn’t suggest all Board of Governors are on the same page?
Mr. Leipold told Jim Balsillie something, and because of it he was showing he was not a friend?
That speaks volumes in a league that must toe the party line, or else!
Is it any wonder to have an opinion outside that of the status quo is looked at with disdain?
Would this explain a 26-0 vote?
Without question. “All in favor” (‘click, click’). Was that tumblers we heard?
No, if it doesn’t, it must be a ‘piece of fiction’.
The only fiction I see is the NHL Constitution.
It reads one way, but effectively speaks a different legal language.
No Mr. Bettman. That was not fiction, that was truth.
Truth is indeed stranger than fiction.
And that in the words of Sherlock Holmes is “elementary”.